When Online Consent Fails: Ninth Circuit Rejects Arbitration Based on Hidden Terms

On 4 November 2026 (13 Aban 1405), the US Court of Appeals for the Ninth Circuit affirmed the denial of LendingTree and QuoteWizard’s motion to compel arbitration in the Snowflake data-breach multidistrict litigation. The companies relied on arbitration provisions contained in online terms of use, presented through what the court described as “sign-in wrap” arrangements: users were directed to click through a website flow, while a hyperlink connected them to the governing terms. The panel concluded that the websites did not provide reasonably conspicuous notice. The terms appeared in very small type, were visually subordinated to surrounding content, and were positioned amid competing links and prominent calls to action; in QuoteWizard’s flow, users had to pass larger promotional text and a bright “Get My Quotes” button, while LendingTree placed its terms link below the “View Your Rates” button. Without conspicuous notice, the court found no mutual assent to the terms and therefore no agreement to arbitrate. The memorandum, in Nader v. LendingTree, LLC, No. 25-7045, is expressly marked not for publication and is not precedent except as permitted by Ninth Circuit Rule 36-3. The ruling concerns contract formation and the forum for these claims; it does not determine liability for the underlying data breach. The decision was reported by Bloomberg Law on 5 November 2026 (14 Aban 1405).

In my view, the decision is a practical reminder that online consent is not established by the mere technical presence of a hyperlink or by placing a broad reference to terms somewhere in a user journey. Courts may assess the entire visual experience: hierarchy, contrast, font size, proximity to the action button, competing elements, and whether the user is reasonably alerted that clicking will have contractual consequences. I believe this is particularly important where arbitration clauses, class-action waivers, data-use permissions, and other consequential provisions are bundled into standard-form digital terms. A business should be able to demonstrate not only that its terms were technically accessible, but that the relevant notice was reasonably visible at the moment of assent and that the user’s action clearly signified agreement. The judgment should not be overstated: it is an unpublished memorandum, and its precedential force is limited; nor does it establish that every sign-in-wrap design is unenforceable. The practical lesson is more disciplined: test the actual interface on mobile and desktop, keep the notice adjacent to the relevant action, use readable type and unambiguous language, preserve evidence of the version displayed, and record the user’s assent. Arbitration clauses cannot rescue a contract that the interface never properly formed!

Source: Bloomberg Law, 5 November 2026; Ninth Circuit, Nader v. LendingTree, No. 25-7045, 4 November 2026